A victory for the rule of law

By
Adam Serwer

The verdict yesterday in the case of former Gitmo detainee Ahmed Ghailani, who stood accused of helping facilitate the 1998 bombings of the U.S. embassies in Kenya and Tanzania, was a victory for the rule of law. Conservatives arguing that the trial was a failure because Ghaliani was acquitted on most of the charges are missing the point -- the integrity of American justice is more important than any single conviction, and, as it stands, Ghailani will very likely spend the rest of his life in prison for his crimes.

When President Obama first took office, most of the coverage of the burden left by the prior administration focused on the poor economy. But torture was as toxic to the cause of American justice as bad credit default swaps were to the financial markets, as crushing as the worst recession since Roosevelt. The detention of terror suspects at Guantanamo had been so mishandled that there were no comprehensive case files on many of the detainees. Arguing that the verdict in the Ghailani case is the result of him being tried in civilian court is like saying Obama's bailout of out the banks or the stimulus caused the recession.

It was in this context that the administration did the right thing in bringing Ghailani to trial in civilian court, despite the fact that he had spent two years being tortured at a CIA black site. Conservatives rubbed their hands with glee at the possibility that the case would fall apart when Judge Lewis Kaplan excluded the testimony of a key witness because his identity had been gleaned through torture -- a witness whose own testimony may have been coerced.

There's no evidence that trying Ghailani before a military commission would have produced a different verdict. This wasn't a capital case, and in either forum the admission of such evidence is up to the discretion of the judge. In a footnote, Kaplan wrote that the evidence would have likely been excluded based on the military commissions rules. "Even if they did not," Kaplan wrote, "the Constitution might do so, even in a military commission proceeding." Kaplan couldn't have been more clear. The law wasn't making Ghailani's prosecution more difficult, torture was.

The military commissions have, by and large, been a disaster, only securing five convictions in their entire existence. In the last military commissions trial, which involved Omar Khadr, the detainee pleaded guilty to murder in violation of the law of war, attempted murder in violation of the law of war, conspiracy, providing material support for terrorism, and spying, and received an eight-year sentence. He'll serve the first year at Gitmo, then he'll be transferred to Canada where he could be eligible for parole after serving two thirds of his sentence. That was actually one of the harsher military commissions sentences -- David Hicks got nine months, Salim Hamdan got five months. And we're supposed to view Ghailani's minimum sentence of 20 years as a "failure"?

It's true that the crimes Ghailani was charged with are more serious. But as former Bush-era assistant attorney general Jack Goldsmith explains, a conviction under the military commissions would have been more vulnerable to appeal, and as his colleagues Ben Wittes and Robert Chesney write, it's not clear that Ghailani could have been tried for the crimes for which he was accused under the military system.

So here's the reality: Ghailani's trial took a mere month, at the fraction of the cost of flying translators, jurors, lawyers and reporters back and forth from Guantanamo. He will likely spend the rest of his life in prison. There were no opportunities to use the court as a "platform" to preach terrorism, and no security threats that disrupted the lives of New Yorkers. Opponents of the use of civilian trials often argue that civilian courts can't "handle" terrorists. They literally just did. They've done it hundreds of times before.

If the verdict does not ultimately reflect the level of responsibility Ghailani holds in the deaths of more than 224 people, the failure to secure justice on their behalf lies squarely on the shoulders of those in the Bush administration who sanctioned Ghailani's torture in the first place. That shame is fully theirs to bear.

In any just system, the government runs the risk of acquittal. But as Thomas Jefferson wrote, trial by jury is "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." It is perhaps fitting that those who supported using torture techniques borrowed from Chinese communists would demand a show trial where the outcome is preordained.

Are you nuts? This verdict was a complete disaster for the Obama administration. We are at war with these people and all further trials belong in a military court. These are war crimes and the fate of the perpetrator cannot be in the hands civilians. There will be no funding for further disasters like this one from the House, you can be sure of that.

"In any just system, the government runs the risk of acquittal. But as Thomas Jefferson wrote, trial by jury is "the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution." It is perhaps fitting that those who supported using torture techniques borrowed from Chinese communists would demand a show trial where the outcome is preordained."

The governments risk of acquittal should be based on doubts about the defendant's actual guilt for the crimes with which he is charged, not by excluding accurate evidence in an effort to deter government misconduct.

And the outcome of this trial was preordained. No matter what the verdict, Ghailani was not going to be released.

I'm with shrink. Drones obviate the difficulties of civilian trials. And, as a bonus, prevent the use of enhanced interrogation techniques, as the terrorists in question will be dead, and unavailable for water boarding. Thus, every drone strike is, in it's own way, a victory for the rule of law.

"The governments risk of acquittal should be based on doubts about the defendant's actual guilt for the crimes with which he is charged, not by excluding accurate evidence in an effort to deter government misconduct."

The civilian courts are INCAPABLE of providing two functions of government

1) Protecting US citizens from being killed in plots which are ongoing, plots which suspects might know something about which would help us prevent Americans from being killed.

2) And, at the same time, providing for all these "rules of evidence"

____________________________

There is a "slippery slope" here. The US public should be cautious to AVOID having changes in rules of evidence for terrorist trials "infect" the rules of evidence for regular civilian criminal trials.

If you insist on one Court system and one set of rules of evidence, those rules INTENDED for terrorists can then be applied to regular civilian criminal trials

Keeping these two separate, and on two tracks, PRESERVES CIVIL LIBERTIES IN THE DOMESTIC COURT SYSTEM ....... by preventing the exceptins intended for terrorists to seep into and INFECT the domestic regular Court system.

________________________________

The Courts are disfunctional in terrorism cases, it is that simple

The civilian rules of evidence are INCOMPATIBLE with the demands of INTELLIGENCE and protecting sources.

There is no other way around this.

It only proves how short-sighted and partisan Obama is. Obama is not qualified to hold public office, much less evaluate this silly set of legal theories which do NOT protect American citizens.

The Court system is Worthless if it does not respond to the challenge of terrorism and adapt to the demands of intelligence. The Courts operate to PROTECT THE PUBLIC.

This is where the liberals have lost themselves in their partisan desires to make the case that "Bush did something wrong" and in fact they have come up with little which is practical in the real world.

@ashotinthedark ""The governments risk of acquittal should be based on doubts about the defendant's actual guilt for the crimes with which he is charged, not by excluding accurate evidence in an effort to deter government misconduct."

What? You can't possibly be serious about this"

Yes. I would replace the exclusionary rule with civil liability for the police and other government actors for their misconduct.

"I'm not sure how casualties in a war zone equate to systematic torture of individuals to be honest."

They don't. That is the point. Torturing corpses yields as much actionable intelligence as torturing a living person, but it is considered bad taste. No living person, no messy rule of law issues. That secret rendition thing was so cold war. Hot wars and cold wars don't mix.

Mike- "I'm not sure how casualties in a war zone equate to systematic torture of individuals to be honest."

You're not alone on that one. Obviously armed and unarmed suspected criminals, war or otherwise, and those who are in custody and those who are not are treated differently. Are people suggesting that shouldn't be the case? That we should either give them all a trial or shoot them all without a trial and any other position is contradictory?

@sue and mike: "Is there any guarantee that evidence obtained through enhanced interrogation would not be thrown out of a military court?"

I think you might both be confusing the confession obtained at a CIA black site using EITs with the voluntary confession given to the FBI years later. There's no doubt on anyone's part that a confession obtained under duress would not be used by civilian *or* military justice. The question surrounds his perfectly legal confession to the FBI that the DoJ was not willing to argue for admission.

"Military commissions need not assume that a defendant is endowed with all the rights of American citizens. They need only be fair. Of course, coerced confessions would be suppressed. Voluntary confessions, however, would be admissible. [Such as the one he gave the FBI] Available witnesses [such as Abebe] would be permitted to testify. Prior testimony from unavailable sources [such as the truck owner now deceased] might well be considered as long as it appeared reliable — such as the sworn testimony of a now-deceased witness who was subject to cross-examination."

"... This shouldn’t be about scoring points. It should be about maximizing the chance of convicting a terrorist with American blood on his hands."

RedTeaRevolution wrote:
"Let me make a few points in opposition to what you just said"

What on earth do these have to do with anything? Seriously, what IS your point? That attempted terrorist attacks since Obama's election prove that civilian courts are worthless for terrorist cases? If that were true, don't the attempted terrorist attacks under Bush proved that military commissions are no good either?

I agree. But the administration better get on top of the politics asap. They need to say exactly what you said from the podium so the critics don't get the political upper hand as they always seem to. We should tout this as an example of the fairness of our system, despite its flaws. I don't care if the guy got acquitted on the rest of those charges. He was found guilty and now will have to pay the piper. Only nitwits like Peter King can find fault with that.

sbj3-
So if a witness name was obtained through torture that witness could still testify if available?

Also, does the fact that this crime was committed in 1998 play any role in him being a war criminal? This was well before 9/11. Why weren't republicans bothered when the first Trade Center bombers were tried in civilian court?

Sheesh, every day...the Republicans are not bothered, they couldn't care less. Republicans are pretending to be bothered, they make stuff up to get bothered about (cf. birthers). It is an act that will work so long as those they oppose don't get that.

In a criminal case, the crime is complete, there are few demands to ACT in such a way to prevent an ongoing crime spree.

_______________________________

Being at WAR requires a whole set of things - the civilian courts are UNABLE to meet those challenges.

AND please think about the point of the advantage of have two sets of Court systems - because with one Court system the exceptions intended for terrorists could seep in and begin to be applied to domestic criminal cases - resulting in LESS overall civil rights.

@ashot: "sbj3-So if a witness name was obtained through torture that witness could still testify if available?"

In fact, the DoJ may have been permitted to have Abebe testify in the civilian trial (let alone a military tribunal) if the government would have proved that he was willing to testify of his own free will.

"Kaplan is more amenable to the government’s argument that Abebe is willing to testify of his own free will — in other words, that the witness’s voluntary act would be an independent development, one not directly caused by the coercion of Ghailani. Even here, though, the judge remains unconvinced. True, the government has represented that Abebe is voluntarily cooperating; but it has not proven that he is doing so. According to Judge Kaplan’s opinion, there has been no affidavit from the witness himself, nor any testimony from CIA, FBI, or Tanzanian officials about the circumstances of Abebe’s apprehension and eventual cooperation. The judge... has indicated that the testimony will be barred absent a compelling demonstration that this witness... actually wants to come to New York and testify, and is not acting under any duress from U.S. or Tanzanian authorities."

DoJ incompetence.

"Also, does the fact that this crime was committed in 1998 play any role in him being a war criminal?"

This was a Tanzanian who had committed murder in Africa - "his only connection to the US was his decision to make war on it" - why should he get all the rights that American citizens get?

What does the war criminal aspect have to do with the DoJ's refusal to argue for his FBI confession, or to successfully get Abebe to testify?

"Why weren't republicans bothered when the first Trade Center bombers were tried in civilian court?"

Let's stick to the matter at hand - someone who confessed to 200 murders is not going to be convicted of it. The civilian trial was a colossal failure.

Adam Serwer seems convinced that Ghailani is guilty -- and even celebrates the face that he will spend his life in prison. Given that simple fact, how in the world can Ghailani's acquittal be a victory for the rule of law? Call me old fashioned, but I think the legal system triumphs when it arrives at the proper conclusion. In this case, our system failed us big time.

"his only connection to the US was his decision to make war on it" - why should he get all the rights that American citizens get?"

Fair enough. I'm just trying to understand the factors that play into when a person should or shouldn't be charged in a civilian court vs. tribunal. Is it more nuanced than he is a non-citizen terrorist? Does it depend on where the act of terror occurred or when in relation to 9/11?
The reason I ask is, depending on the factors, it may be entirely consistent to have tried the 93 and 01 WTC bombers here, but object to others. Hopefully that makes sense.

"Let's stick to the matter at hand - someone who confessed to 200 murders is not going to be convicted of it. The civilian trial was a colossal failure."

Also fair enough. This discussion is much more interesting than screaming hypocrite at each other.

I do appreciate the knowledgable and reasonable response to my questions.

One must read the words of Mr Serwer very carefully. here's a case in point:
++++++++++++++++
There's no evidence that trying Ghailani before a military commission would have produced a different verdict
+++++++++++++++++++

duh. this is a complete hypothetical. Of course there is no evidence. Why? Because he wasn't tried before a military commission.

the rest is just self serving blather from a reliable source of same. Spare us the speculation.

The liberal position on drones reminds me of the liberal position on abortion. Basically it boils down to an set of rights conferred on people based on when it is decided that they will die. If it is decided that they will die in the womb, or in the A stan bad lands, no rights are conferred on the person.

If it is decided that they will die at some future date, then all the rights in the world, including in the case of terrorists rights that they have no real access to otherwise, are conferred on them.
Liberals here seem fine with the unajudicated use of violence to terminate the life of someone they think might be a terrorist. No trial for Najibullah in the mountains is necessary or desired, just kill the them and let God (or Gaia) sort them out, right? But if Najibullah is captured then he gets the entire range of tax payer funded "rights".

so the liberals here must, therefore, be OK with a set of ROE's that prefers killing "suspects" by any means, rather than capturing them. For example, if a talibanista is wounded in a fire fight, America would be better off if the US Marines put him out of his misery. What is the difference between a hellfire missle and a round from an M16A2? In both cases the guy is dead an we need not worry about a trial, right guys?

the right wing vitriolic whining on this case is just staggering in its ignorance and visceral hatred of Obama, the constitution, and the rule of law.

Someone getting 20-life at the end of a trial is usually considered to be a success, especially when you consider the justice dept went in with both hands tied behind its back dealing with having most evidence being thrown out because it was obtained through torture. The threat from this guy is effectively over since he will probably be in federal prison for the rest of his life, but don't let that stop a good spittle-flecked diatribe about Obama being soft on terror, a terrorist, muslim, atheist, kenyan, indonesian, manchurian candidate out to destroy america, and apple pie....I guess repubs think we should throw the suspects tied up into a lake. if they drown, they were guilty.

Tell me, have the military commissions sentenced anyone to 20-life yet?

We have no fear,our government is protecting us.The department of homeland security has brought us the gitmo airport.Where everyone is a terrorist.Treated as such.But we no longer do this kind of search in the war zone.It will disturb the locals.Soon we will see the new and improved version Abu grab where you can have a enhanced grope and slapping expirence as your rights are trampled for a false sense of security.We have lost our minds.This will eventually spread to autos elevators day care markets 7-11 sporting events.Why not, once you allow a federal employee to feel your junk whats left? Who really cares about our judicial wins and losses we know its rigged.

@sue: "And he was convicted and is facing 20 to life. Why are you trying to score points by calling for Holder's firing?"

He was acquitted of conspiracy to kill Americans!

"Ahmed Ghailani has confessed to bombing the U.S. embassy in Tanzania twelve years ago. As he explained to the FBI in a series of 2007 interviews, he bought the TNT used in the explosion. He even identified the man from whom he purchased it — a man who was subsequently located, who corroborated Ghailani’s confession, and who has been cooperating with American and Tanzanian authorities ever since. Ghailani also helped buy the truck and other components used to carry out the suicide attack.

"The two simultaneous embassy bombings — Ghailani’s in Dar es Salaam and a second, more devastating one at the American embassy in Nairobi, Kenya — killed at least 224 people. The bombings made Ghailani, then in his early 20s, an icon of the jihad. He strode al-Qaeda’s training camps in Afghanistan and bonded with fellow terrorists, including some who would later conduct the 9/11 attacks. In fact, Ghailani was so highly regarded that he was chosen to serve as a bodyguard for Osama bin Laden himself."

"Basically it boils down to an set of rights conferred on people based on when it is decided that they will die."

No, it boils down to people in custody being treated differently than those who are not in custody. Surely you aren't suggesting that they should be treated the exact same?

The Bush administration held military tribunals and killed suspects with drones so the distinction with nary a cry from you skip. The line you are drawing appears to be that the hypocrisy is created only when terrorists are tried in front of a jury.

Important information:
Dear Sir/ Madam,
On behalf of the Prosecutor, I thank you for your query on how to submit information to the Office of the Prosecutor.

The Office welcomes the submission of information on crimes that may fall within the jurisdiction of the Court. Communications may be addressed to the Office of the Prosecutor, Information & Evidence Unit, Post Office Box 19519, 2500 CM The Hague, The Netherlands, or sent by email to otp.informationdesk@icc-cpi.int , or sent by facsimile to +31 70 515 8555.

Communications should be written in one of the working languages of the Court, i.e. English or French, or if that is not possible, then in one of the other official languages, i.e. Arabic, Chinese, Russian or Spanish. It is preferable for communications to contain as much detailed information as possible.

Please be aware that the submission of information does not automatically trigger an investigation. In accordance with the Rome Statute, the Office of the Prosecutor must analyse all information submitted in order to determine whether the rigorous criteria of the Statute are satisfied.

As you may know, the International Criminal Court has a carefully defined jurisdiction and mandate. We are pleased to provide supplementary information below summarizing the main aspects of the Court’s jurisdiction.

Once a decision is taken whether or not there is a reasonable basis to proceed with an investigation, the Office will promptly inform the senders of relevant communications, along with reasons for the decision. The Office will protect the confidentiality of all information submitted.

We are grateful for your interest in the Court. If you would like to learn more about the work of the Court, I invite you to visit our website at ,.

gotta read carefully:
==================
Indiscriminate murder of civilians versus targeted killing of suspects, that is our case for the difference between what we are doing and what they are trying to do.

=====================

We can all deplore the former, but it seems to me that the American left has no business advocating the latter. "(T)argeted killing of suspects..." obviates the rule of law!

If we follow Mr Serwer's thesis to its ridiculous end, surely we cannot kill suspects without a trial and a sentence. Where is the transparency in that? Who, in the building that controls the drones, advocates for Najibullah? No one? How is that in keeping with our highest traditions? How does killing "suspects" sustain " the integrity of American justice"?

Greg, yer column is more like the prune line dude. The integrity of our nation's, and our citizen's security is much, much more important than any alleged rights given to a foreign islamofascist terrorist piece of sh**. Discovery, which a defendant gets the right to see all the evidence against him, usually results in the elimination by exposure of our most sensitive sources and methods; procedures used to capture or kill these thugs of islam, and the damage cannot be undone. The real point YOU missed here Greg, is that our bravest soldiers are subject to the very same military law system that you want to protect these animals from. So, in essence you asre saying that these scumbags are somehow more worthy of justice than our own citizen soldiers. You are wrong Greg, on all counts. The scumbag should hang until he is dead, dead, dead.

Letting people get away with killing people always proves how great a nation we are, and what a wonderful system of justice we have. People keep getting killed, but we are wonderful, and the justice system is wonderful. Oops! My mistake; the apologists didn't say "justice". They said "rule of law". They only say "justice" when they're talking about racial or ethnic matters, as in "social justice', don'tchaknow?

Right1, in essence, you're saying that because our enemies are not concerned with the rule of law, we shouldn't be concrned with the rule of law either. If our enemies rape our captured female soldiers, should we retaliate and do the same to them? Often times, true victory comes from standing for something, and not letting our fears force us to abandon our values.

""Yes. I would replace the exclusionary rule with civil liability for the police and other government actors for their misconduct.

http://en.wikipedia.org/wiki/Exclusionary_rule"

So police could violate the 4th Amendment and all that would happen is they would get sued?"

Yes, the people responsible for the 4th Amendment violations would be punished for the violation, not society at large. Keep in mind that the current state of affairs doesn't punish the police for 4th Amendment violations as they are considered immune, it just lets guilty people go free.

In this particular circumstance, it wasn't even evidence from Ghailani himself that was excluded, but rather that of another witness, Hussein Abebe, that was "fruit of the poisonous tree".

Note that the exclusion of evidence obtained illegally is not itself mandated by the 4th Amendment, but rather a creation of the judiciary in search of a remedy for 4th Amendment violations.

The most notable recent case was Mapp V Ohio in 1961 which applied it to the states.

http://en.wikipedia.org/wiki/Mapp_v._Ohio

It would have been interesting to see if Mapp was decided the same way if the original subject of the illegal search, a bombing suspect, had been found or if the trunk that was searched indicated that she had been a secret serial killer instead of having "obscene materials".

I agree, a victory for the rule of law. Of course I would prefer that he had been convicted on more counts; obviously something is wrong somewhere. I blame the torture. If a confession is procured with torture, it is not believable. Note how the most recent high profile terrorist was not tortured, but provided good, usable intelligence, while the right wing howled. Note also how the trial was conducted in the United States without incident, contrary to the dire warnings of right wing fearmongers.

Maybe skip, you didn't understand what I was saying. We agree, I think.

I am saying all this bs about rights and the victory of rule of law and this court and that court is a dalliance, an absurd preoccupation of the liberal mind, an affectation, a fig leaf.

Others have made the distinction between people in custody and people in a war zone. I am saying, well that is a neat trick. In situ killing obviates the problem. If they are dead, they are guilty or collateral or anyway, it doesn't matter.

I don't imagine anyone is going to mess with that cold war artifact, rendition anymore. Why, when we can just kill the people we don't like. It'll teach the people in that village sifting through the wreckage a life lesson, or a death lesson, if there is a difference. Court room drama? Naw not so much.

Still, I'd like to know who decides who lives and who dies in some village in Pakistan. But that would compromise the program. Undeclared war featuring targeted killing is something the Obama administration and its defenders have to own. Fine with me, just own it. Stop parsing.

Posing around the gitmo circus as a celebration of the rule of law is poor cover.

Tomás de Torquemada thought he was doing the right thing. I'll bet the people picking the targets for the drone attacks are pretty sure they are doing the right thing.

By the way, I know a Loach pilot who has super 8 movies taken of himself massacring Vietnamese villagers along dikes and in clearings of various free fire zones. He smiles for the camera and flashes the victory sign after each pass. You can see the little people running and crumpling, by the dozens, footage I sure wish I had never seen. Being well intentioned or acting according to the rule of law doesn't mean a thing if you are doing something evil.

The system worked. Just because you don't like the outcome, doesn't mean it failed. This nation needs to stick to it's priciples, not give into the fear-mongering bloodhounds. If you're scared, say your scared. Then go find a recruiting station and enlist. Otherwise, save your armchair warrior silliness to yourself, and stew in it.

Are we bombing Pakistan? Because bombing a country where there was no war used to be bad. I remember being against that. But if droning people is ok, shouldn't we have that discussion? We can't really say well Kissinger did it, the Bush/Cheney crowd did it, so that makes it ok. Wouldn't it be strange if everybody started droning people they didn't like in other countries? Why can't China drone the Dali Llama as he drives across some American town? You know why? Because they can't and we can and that is my point. If the targeted killing people around the world is ok, but abducting and torturing them isn't, is the world a better place?

I don't want to put too fine a point on this, but you do realize that before they got there, we could have killed every one of the gitmo prisoners without anyone arching an eyebrow. And there are no new gitmo prisoners and there never will be. Hmmmm.

Yes. I would replace the exclusionary rule with civil liability for the police and other government actors for their misconduct.

http://en.wikipedia.org/wiki/Exclusionary_rule

Posted by: jnc4p

That's what was in place before Mapp v. Ohio and what the Court relied on in Wolf v. Colorado. Read the Court's reasoning in Mapp. After years of trying, there was NO OTHER ALTERNATIVE to the Exclusionary rule to deter government lawbreaking.

Huh?
==============
No, it boils down to people in custody being treated differently than those who are not in custody. Surely you aren't suggesting that they should be treated the exact same?

==============

Basically my point is this: if an American citizen decides that someone who shows up on the monitor screen at the control house of a drone flight should die, then whammo, they die. No trial. No rule of law, no transparency, no concern about "integrity".

No siree, the person standing where the hellfire missle strikes is dead. So much for the "integrity of American justice".

This reminds me of the liberal position on abortion. If an American citizen decides that a fetus must die, it dies. No trial. No rule of law, no transparency, no concern about "integrity".

but let the person on the monitor be captured, or let the fetus actually be born and an entire set of rights are conferred.

I just don't see how this arbitrariness can be explained. Why is it mandatory that we confer constitutional rights on folks we'd just as soon slaughter with a rocket? If a born baby has rights, why not the same baby in the womb? How do we convince ourselves that all of this makes sense? It certainly makes no sense to me.

If we're willing to kill talibanistas outright, no matter what country they are in, without the benefit of a trial by jury, why not just kill the ones we capture too? Better yet, why bother with capture at all? Just whack them and save Eric Holder's budget, right?

Oh but wait, this is America. And in America the "integrity" of the justice system is sooooo important that we will try Navy Seals who capture a hideous murderer, but we won't try a New Black Panther party member who was caught on tape intimidating voters.

It makes no sense. Perhaps someone here with a strong grasp of liberal dogma can give me the party line answer to my question

The magic of the drone exculpates the people who decided that the people in that house or neighborhood got obliterated.

If some guy and his buddies on the ground did that, they just might be war criminals, depending on the public relations environment and the mood of the people who hired them. Will drone controllers ever be known, let alone judged?

I am not saying no more drones, I am saying "victory of the rule of law" is an immature celebration.

Well, it looks like the proper course of action has been set. Since the courts aren't going to do the right thing with these unlawful combatants and are primarily concerned with procedure (even in combat!), a double tap on the battlefield is the way to go...

It is a very interesting question. I am fine with abandoning any claims that there has been a victory for the "rule of law." Does that help?

I'm just confused by what my options are here. It appears that under your (and skip's) logic, if I support or accept drone attacks I have to similarly accept indefinit detention, torture, military tribunals etc.

I understand the dilema and I'm not sure I know enough about the military procedures and requirements surrounding a drone strike to agree with the way they are being characterized. Is there a required level of confidence regarding the intelligence surrounding a target before it is attacked? Obviously, such a standard would not rise to "beyond a reasonable doubt".

Maybe I'm misunderstanding your position though.

I do have to admit that the proposal by jnc4 regarding the treatment of illegal seizures etc is interesting. If I have time I would like to take a deeper look into Mapp v. Ohio.

" the fact that he had spent two years being tortured at a CIA black site." Adam, please provide the evidence for that assertion. Ahmed Ghailani was arrested by Pakistani police after a six-hour gun battle wounding a police officer and interrogated by them for days, probably not very kindly, before they realized he was wanted by the US. Other news reports stated that his US interrogation was over a period of five days with extreme conditions at most 14 hours over that period, and that he cooperated. Quite likely since he was charged with conspiracy the interrogation was not to obtain a confession but to reveal co-conspirators, some of whom are charged but still at large, and to prevent more Al Qaeda terrorism. Of course, others claim that detention at Guantanamo or other sites itself is torture, but you will have to come up with your personal knowledge of what exactly you mean by torture before your claim can be accepted. The Chinese "brainwashing" you mention has nothing to do with all this, since it was not punishment nor interrogation but attempts at re-education with negative reinforcement such as standing still in a corner, never waterboarding such as with KSM.

The civilian rules of evidence are INCOMPATIBLE with the demands of INTELLIGENCE and protecting sources.

There is no other way around this.

It only proves how short-sighted and partisan Obama is.
Posted by: RedTeaRevolution

=====================================

True. The dysfunction isn't with civilian courts per se but the changing tracts in mid stream. These people are combatants or common criminals and that needed to be decided from the beginning.

Now Obama is in a pickle because all that lofty rhetoric as a candidate flies in the face of the reality that he's president now and releasing (or trying and risk acquitting) goons who have tried and still want to kill us by the thousands isn't such a great idea.

@mcstowy "That's what was in place before Mapp v. Ohio and what the Court relied on in Wolf v. Colorado. Read the Court's reasoning in Mapp. After years of trying, there was NO OTHER ALTERNATIVE to the Exclusionary rule to deter government lawbreaking."

I'm (obviously) not persuaded by the courts reasoning in Mapp. And we have arrived at the end result of their reasoning. Rather than risk the application of the exclusionary rule, my prediction is that this is the last trial we will see of Guantanamo detainees. The risk of them "beating the rap" on a technicality will be too great.

This also means that Guantanamo detainees, and others, who may actually be innocent of the charges against them will no longer have an opportunity to contest them in a Federal court.

We are prepared to tolerate the consequences of the Exclusionary Rule when it comes to shoplifters and other common criminals. We aren't when it comes to terrorists possibly going free.

On a broader note, in almost any other field of inquiry where we are trying to determine an answer, more information is always better. Only in a court of law do we find the proposition that excluding relevant, accurate information from the determination of guilt or innocence for a specific charge will lead to a better end result.

"I am fine with abandoning any claims that there has been a victory for the "rule of law." Does that help?"

For me? Yes! That was my point on top. When the "rule of law" is parsed by scholars in this way only because the Bush/Cheney administration made the mistake of taking prisoners; we are choosing to ignore the alternative.

We have made working with and against these same people a clandestine operation, black ops is not about the rule of law. Yemen is next, it is already happening.

We can call it something else, winning the war on terror, killing the bad guys, I don't care what it is called, so long as we know we are choosing to do what we are doing: ignoring the process, leaving it beyond the rule of law.

"We can call it something else, winning the war on terror, killing the bad guys, I don't care what it is called, so long as we know we are choosing to do what we are doing: ignoring the process, leaving it beyond the rule of law."

Glad we could come to some sort of understanding on this. I didn't mean to come across as claiming to be defending the rule of law in my position. I don't really have much use for such a claim.

"The risk of them "beating the rap" on a technicality will be too great."

Speaking only for myself, I'm more concerned with a "rogue" juror. The way our system is set up that is all it takes to prevent a guilty verdict and at least one article I read indicatd that might have been a problem in this case. That some sort of compromise was struck seems to be the only explanation for the inconsistent verdict.

For redtearevolution and the other simpleton, sissypants conservative degenerates: if you don't like the constitution and the rule of law, GTFO of my country and go cry on somebody else's shoulder. Freedom is never without risk and justice is never assured. The kind of weak, limp crybaby conservatives who demand to be protected from every potential threat are the kind of conservatives who were Tories during the Revolutionary War, snivelers who want the safe option. The safest option is to move to a socialist country like Sweden, where you will be coddled and babied and protected like you want but have no rights, dignity, or privacy. If Ghailani could get a fair trial, then even crooked conservatives can get a fair trial when someone bothers to prosecute them (Cheney, Bush, Yoo, Bybee, Chertoff, Rumsfeld, lots of low hanging fruit). If Holder could borrow one of Hillary's nutz for a day he could start those investigations on torture and perhaps salvage some of his, Obama's, and this nations dignity and character. Torture is the stain of weakness and cowardice, doubly so when used by a "democratic republic."

Everyone working in the field knows if they capture one of these guys they are just wasting their time and potentially ruining their careers. The administration should stick to prosecuting John Yoo and intrusive airport searches and leave the terrorists alone since they have no effective solution.

@RTR:William Ayers bombed the Pentagon and Capital Building, but saw his case dismissed on the grounds of "wiretapping offenses" by the government.

Obams SURELY understands the result of violations of evidence - the defendants are released, Free to live in Hyde Park and Free to get to know and influence liberals like Obama.

Obama understands what the constitution says as you apparently do not...clearly you don't understand or have any regard for the constitution. The constitution, as is so often pointed out by conservatives, has parts designed SPECIFICALLY TO DETER GOVERNMENT MISCONDUCT. The 4th amendment is an example of this. Allowing some theoretically "guilty" people go is the price we pay for our right to be secure in our homes and persons from government illegal searches and seizures. You don't like that, feel free to move somewhere else...I am sure that Russia, China, North Korea, and Cuba have rules of evidence more to your liking...Here where we ostensibly have the rule of law, the govt isn't allowed to torture people into confessing and then trying them on that evidence or any information flowing from that evidence. Once you torture someone, there are no "do overs". Torture has deep and long lasting extemely negative effects on people. Its effects last for years. Some never recover. It is ludicrous to argue that confessions given after the confessor was tortured are somehow unaffected by being waterboarded, beaten, hung from the ceiling, frozen, sleep deprived for days or weeks, etc. I would love to see what you would confess to under those circumstances, even years after the events if during the intervening time YOU WERE STILL BEING HELD BY THE FOLKS THAT BRUTALLY TORTURED YOU for weeks, months, or years.

The military commissions are a joke. Even military lawyers have said so. The few convictions from these kangaroo courts have been far less harsh than those from federal courts.

Yeah, right. Except when it comes to immigration, drugs and guns.
--see below
Liberals only mean "rule of law," when it's a "law" they like. Like criminal-friendly courts.
--Its sad that you dishonor our founding fathers respect for civil liberties and the rights of defendants. They suffered under unjust courts and designed a system that provides rights to defendants many other democracies do not. That is not an accident.
Hypocrites...Liberals hardly rate being in power.

--Liberals are the worst, except for the republican alternative. I have nothing against the rule of law when it comes to gun laws. The founding fathers would be horrified and sickened by the so called "war on drugs" and the unconstitutional property seizures, surveillance, and basically denying people the right to consume what they want. I am happy to have a rational discussion about what the govt should do about the 10 million or so undocumented immigrants in the US. But I don't believe that immigrants not in compliance with every law and regulation is somehow a bigger problem than other kinds of law enforcement priorities. For example, stricter enforcement of traffic laws, building codes, health and safety regulations at food vendors, and environmental regulations and laws will save far more lives than bringing the full force and power of all levels of govt to enforce immigration laws. But precious few want to pay the cost in money and freedom to implement the draconian measures it would take to have "full enforcement" of immigration or any other set of laws. If you can't see the need to balance law enforcement priorities across a range of problems and insist that immigration should somehow be the only or primary law enforcement priority, there isn't much to discuss.

"Conservatives rubbed their hands with glee at the possibility that the case would fall apart when Judge Lewis Kaplan excluded the testimony of a key witness because his identity had been gleaned through torture..." Neo-conservatives are as far away from conservatism as are rsging progressives. The W Bush administration combined an attempt to complete LBJ's Great Society with a foreign policy akin to that of Woodrow Wilson on crack. You will recall that John Ashcroft would not sign off on "enhanced interrogation" techniques. I have a suggestion. Review all cases at Gitmo. Those that are worthy of prosecution should be pursued--the other prisoners should be released in their own countries at the same time we give up on military adventurism and realize that Iraq will probably devolve into civil strife and probably break up until a strongman or three emerge. As for Afghanistan, it has never been and never will be a nation state in the western sense, and I doubt that Mr Holbrooke really wishes to enjoy the fate of Sir William McNaughton in 1842.

"Conservatives rubbed their hands with glee at the possibility that the case would fall apart when Judge Lewis Kaplan excluded the testimony of a key witness because his identity had been gleaned through torture..." Neo-conservatives are as far away from conservatism as are rsging progressives. The W Bush administration combined an attempt to complete LBJ's Great Society with a foreign policy akin to that of Woodrow Wilson on crack. You will recall that John Ashcroft would not sign off on "enhanced interrogation" techniques. I have a suggestion. Review all cases at Gitmo. Those that are worthy of prosecution should be pursued--the other prisoners should be released in their own countries at the same time we give up on military adventurism and realize that Iraq will probably devolve into civil strife and probably break up until a strongman or three emerge. As for Afghanistan, it has never been and never will be a nation state in the western sense, and I doubt that Mr Holbrooke really wishes to enjoy the fate of Sir William McNaughton in 1842.

We are certainly in a guerrilla war in Afghanistan, but it is a highly flawed model for describing our overall conflict with terrorists. There are no fronts, no theaters of operations, no clearly defined and recognizable enemies, no distinguishing between military and civilian, and not even a way to tell if we have won or not. True, guerrilla warfare has some of these characteristics, but not nearly to the extent as terrorism. While treating terrorism as a crime has some problems, I do not consider it nearly as flawed as the warfare model.

You also ask for two sets of courts because you fear a slippery slope of extreme tactics used in terrorist cases finding its way into normal law cases. My answer is simple: I don't favor the use of extreme tactics at all.

There is another slippery slope to fear as well. You are asking one set of courts with full human rights and another set with limited rights. What happens when the category of those who are considered sub-human expands? The Bush administration argued at various points that it had the right to determine who was an "unlawful combatant", that nobody else had the right to challenge those determinations - even when the person was a US citizen captured on US soil in a non-combat situation, and that people classified as unlawful combatants only had such rights as they chose to give them. That is a slippery slope the scares the pee out of me!

The problem with the military commission system is not that people can’t be convicted and given harsh sentences. It’s that the system was originally designed to operate outside the law and beyond the reach of the courts.

Once the Supreme Court got into the picture, not through the Constitution, but through ancient right of habeas corpus, the US government was forced to begin legalizing the system. At this point it’s more legal than it was, but the likelihood of a decision surviving an appeal in regular courts is still questionable.

This is illustrated by Khadr case and the other cases mentioned in the article as examples of the failure of the military commission system. The Hamdan case fell apart because of the Supreme Court. Hicks is free because he was rescued from an illegal process by the Australian government.

Khadr was an unlikely victim of politics, within and between the US and Canada. Khadr’s 8 year sentence on top of 8 years spent in Bagram and Gtmo since he was 15, was a result of a plea bargain and an arrangement between the US and Canada. In return he agreed not to appeal or not to sue the US government.

The military commission jury wasn’t told about the plea bargain and they gave him a sentence of 40 years based on dubious laws and self incriminating evidence gained through illegal interrogations, plus the assumption that it was either not credible or not relevant that a prisoner might have been abused at Bagram and Gtmo, during and after 2002.

Such a decision seems most unlikely to have survived an appeal to regular courts. The Canadian courts ordered the government to repatriate Khadr, and the Supreme Court, while stopping short of an actual order, declared Canada complicit in an illegal American process, contrary to Canadian and international law and principles of fundamental justice, probably what Americans call due process.

We encourage users to analyze, comment on and even challenge washingtonpost.com's articles, blogs, reviews and multimedia features.

User reviews and comments that include profanity or personal attacks or other inappropriate comments or material will be removed from the site. Additionally, entries that are unsigned or contain "signatures" by someone other than the actual author will be removed. Finally, we will take steps to block users who violate any of our posting standards, terms of use or privacy policies or any other policies governing this site. Please review the full rules governing commentaries and discussions.